Citation Nr: 21000971 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 08-01 934 DATE: January 6, 2021 ORDER A rating of 40 percent for right knee arthritis with limitation of extension and no higher is granted from June 25, 2008 to July 10, 2018. A rating in excess of 10 percent for right knee meniscus disability is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From June 25, 2008 to July 10, 2018, right knee arthritis has been manifested by extension that is functionally limited to 30 degrees with flexion to 90 degrees. 2. Right knee disability (degenerative medial meniscus) other than based on arthritis with limitation of extension is characterized as chondromalacia patella and is manifested by symptomatic semilunar cartilage with small effusion with increased activity. There is no ankylosis, instability or recurrent subluxation. 3. The Veteran’s right knee disability does not present an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. From June 25, 2008 to July 10, 2018, the criteria for a disability rating of 40 percent and no higher for right knee arthritis with limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5261. 2. The criteria for a disability rating in excess of 10 percent for right knee disability (degenerative medial meniscus) other than arthritis with limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 3. The criteria to warrant referral for extra-schedular consideration for right knee disability have not been met. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.321 (b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter came before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision. In October 2009, the Veteran appeared at a hearing before Veterans Law Judge (VLJ) Cheryl Mason. Since that time, VLJ Mason has been sworn in as the Board’s Chairman. Pursuant to 38 U.S.C. § 7102(b), a proceeding may not be assigned to the Chairman as an individual member. However, the Chairman may participate in a proceeding, such as this, which has been assigned to a panel. In September 2011, the Board denied a disability rating in excess of 10 percent for a right knee disability and granted a separate 10 percent rating for arthritis of the right knee. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2013 memorandum decision, the Court remanded the matter of an increased rating for the right knee disability to the Board for further proceedings consistent with the memorandum decision. Pursuant to caselaw, the Board, in February 2015, April 2017, and January 2018, remanded this matter for VA right knee examinations. In an April 2012 rating decision, the Agency of Original Jurisdiction (AOJ) effectuated the Board’s grant of a separate 10 percent rating for the right knee arthritis, assigning the 10 percent rating from June 25, 2008. In the January 2018 remand, the Board added the TDIU issue to the appeal since it was raised by the Veteran’s attorney in September 2016 and is “part and parcel” of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2020, the AOJ denied an increased rating for right knee disability, degenerative medial meniscus, and TDIU, and granted a 40 percent rating for arthritis with limitation of extension, that was previously rated as arthritis, right knee with limitation of motion, flexion, from July 10, 2018. Both of the right knee ratings are addressed in this appeal because the Veteran’s claim is one for a higher rating for the right knee disability under any applicable rating. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The right knee disability is rated 10 percent and then 40 percent as of July 10, 2018 under DC 5261 for limitation of extension of the leg under the Schedule of Ratings – musculoskeletal system. When rated at the 10 percent level prior to July 10, 2018, the rating was for limited flexion of the right knee with arthritis under DCs 5010 and 5260. The rating was consistent with 38 C.F.R. § 4.59, providing for a compensable rating for painful motion that does not meet the criteria for a minimum rating based on limitation of motion. A separate 10 percent right knee rating is also assigned based on degenerative medial meniscus under DC 5259 for Cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a. DC 5261 provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under DC 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Separate evaluations under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 September 17, 2004). Under DC 5257 for knee, other impairment of, 38 C.F.R. § 4.71a, recurrent subluxation or lateral instability warrants a 10 percent rating when slight, a 20 percent rating when moderate and a 30 percent rating when severe. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Separate evaluations may be assigned for compensable limitation of flexion, extension, instability, subluxation or meniscus impairment. 1. A rating of 40 percent for right knee arthritis with limitation of extension is granted from June 25, 2008 to July 10, 2018. The Veteran’s assertions as to flare-ups and limitation of motion during normal daily use of the knee have remained constant throughout the period on appeal. Here, the Board notes that while the examinations prior to July 10, 2018 have been deemed insufficient or inadequate either by the Court or the Board, the contentions of the Veteran demonstrate a continuous level of impairment in terms of flare-ups and painful motion. In June 2008, he reported flare-ups were worse in cold weather. During flare-ups he was unable to stand for more than a few minutes or walk more than a few yards. In August 2010, he reported he was unable to stand for more than a few minutes and could walk between ¼ of a mile and a whole mile, limited by knee pain to include during flare-ups. In September 2015, he reported that right knee pain flare-ups limited prolonged standing and walking, climbing stairs or ladders, or carrying weight. These assertions are not inconsistent with those noted at the time of the July 2018 VA examination when he described flare-ups as increased pain if he walks long distances. As to functional loss, he reportedly cannot stand from a sitting position without the use of his hands. He can walk 30-40 yards before he needs to stop and rest. The examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. Pain significantly limited functional ability with flare-ups. At the July 2018 examination, the Veteran’s range of motion included extension limited to 30 degrees with pain, which supports a 40 percent rating under DC 5261. Flexion was to 90 degrees which does not support a compensable rating. There was pain with weight bearing and localized tenderness in the medial patella. He was not being examined immediately after repetitive use over time, but the examination was considered medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Pain, weakness, fatigability or incoordination were considered to significantly limit functional ability with flare-ups. The Board finds that the Veteran’s knee problems did not suddenly get worse on the day of the examination in July 2018. Rather, his complaints have been consistent during the period in which service connection for right knee arthritis has been in effect, since June 25, 2008. Consistent with DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995) as well as with 38 C.F.R. § 4.40, 4.45, 4.59, the Board considers the extent that a Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during “flare-ups” due to the extent of his pain and painful motion, weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. The Board thus reasonably concludes that extension has been functionally limited to 30 degrees from the date of the separate rating, June 25, 2008. It is not the Veteran’s fault that the examinations were insufficient or not adequate prior to July 2018. His treatment records from June 25, 2008 to July 10, 2018 are not inconsistent with this conclusion. The 40 percent rating is warranted from June 25, 2008 to July 10, 2018, since the disability picture more nearly approximates the criteria for the higher evaluation consistent with 38 C.F.R. § 4.7 throughout the period beginning June 25, 2008 when flare-ups are considered. Reasonable doubt regarding the degree of disability has been resolved in favor of the Veteran consistent with 38 C.F.R. § 4.3. Thus, a 40 percent rating under DC 5261 is granted for the period beginning June 25, 2008. As to an even higher rating under DC 5261, the schedular criteria are not met or approximated at any time as there is no argument that extension is limited either actually or functionally to 45 degrees or less. A separate rating under DC 5260 is also denied, as his flexion remains noncompensable. He is already getting compensated for painful motion with the 40 percent rating for painful extension. Here, we find that the observations of the skilled examiner in July 2018 are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment based on range of motion. To the extent that the Veteran asserts that there has been such a degree of limitation, his perceptions are outweighed by the observations of trained medical personnel documented in the record. 2. A rating in excess of 10 percent for right knee disability other than arthritis with limitation of extension is denied. The Board remanded the right knee claim in January 2018 to afford the Veteran another VA right knee examination which complies with the Board’s prior remand directives and contains the required information to be considered adequate under law. The July 2018 VA examination reflects no recurrent subluxation or lateral instability and no ankylosis. The examiner did not note semilunar cartilage with frequent episodes of “locking” pain, and effusion into the joint. There was no recurrent patellar dislocation, "shin splints" or medial tibial stress syndrome, stress fracture, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was reportedly small joint effusion with increased activity. The rest of the record is not inconsistent with this examination as to these findings. Thus, a higher rating under DC 5259 or a separate or higher rating under DCs 5256, 5257, 5259, 5262 or 5263 are not warranted, as none of the criteria listed in these DCs is present. During VA examination in July 2018, the examiner noted that the listed diagnosis is meniscal injury but an MRI in 2008 recorded only chondromalacia patella. The Veteran reportedly had not seen an orthopedist for this problem. He reportedly takes nonprescription ibuprofen 200 mg twice a day. No assistive devices were reported. The examiner clarified that the Veteran does not have a right meniscal injury but instead has chondromalacia which is a deterioration of the cartilage on the underside of the patella. He reported increased pain and increased loss of range of motion over the past 2 years. Ultimately, the Veteran’s right knee disability other than limited extension is rated by analogy as symptomatic semilunar cartilage. The Board finds that his disability picture does not approximate a higher rating under any applicable DC. Consistent with DeLuca, the Board has considered the Veteran’s functional impairment and flare-ups in support of the 40 percent rating and no higher related to range of motion rating discussed above. Again, the Board finds that the observations of the skilled VA examiner in 2018 are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment based on any DC. The Veteran’s perceptions in this regard are outweighed by the observations of trained medical personnel documented in the record. The criteria for a higher rating are not met or approximated at any time throughout the appeal period for the right knee disability other than based on limitation of extension, when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. 3. Referral for Extraschedular Rating is denied. As directed by the Court, now that an adequate examination has been obtained, the Board will consider the application of 38 C.F.R. § 3.321 (b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Thun v. Shinseki, 573 1366 (Fed. Cir. 2009). A referral for extraschedular consideration is not warranted. The evidence does not indicate anything extraordinary about the Veteran's right knee disability. The examination in July 2018 reflects that the right knee disability consists of painful limited motion which limits activities and some effusion in the joint reported with use. The threshold in exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id.; 38 C.F.R. § 3.321 (b)(1). In this case, the available schedular ratings contemplate the Veteran's subjective and objective symptoms. The Veteran's most consistent right knee complaint is pain and limited motion, which is contemplated by the rating schedule, and the functional loss the Veteran experiences from such pain has been addressed above. As the record fails to demonstrate support for the first element in the Thun analysis, further consideration would be moot. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (holding that referral to extraschedular consideration requires two elements, an exceptional disability picture and "other related factors"). Therefore, the Board does not find a basis to support referral for consideration of an extraschedular rating. REASONS FOR REMAND The Veteran claims, generally, that he is unemployable due to service-connected disability. He is rated a combined 60 percent for the period on appeal and he does not meet the minimum schedular requirements for TDIU under 38 C.F.R. § 4.16 (a). His disabilities include right knee arthritis with limitation of extension, rated 40 percent; degeneration, medial meniscus right knee, rated 10 percent; posttraumatic stress disorder, rated 30 percent, and actinic keratosis, rated noncompensable. A claim for increased rating for actinic keratosis is currently the subject of a separate appeal stream at the Board, along with a claim of service connection for oral cancer. Because a decision on this other appeal could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Therefore, a remand of the claim for TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that the Veteran has not returned a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, although the form was mailed to him and his attorney in August 2018. Nor has he returned any VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to be completed by each of the employers identified on VA Form 21-8940. The matter is REMANDED for the following action: 1. Ensure that the issue of entitlement to higher initial rating for actinic keratosis and service connection for oral cancer have been adjudicated by the Board. 2. Then, determine if any additional development relating to the issue of entitlement to a TDIU is warranted and, if so, undertake such development. 3. After completion of the above, readjudicate the claim for entitlement to a TDIU. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.